Double edged sword

The Freedom of Information Act 2000, intended to promote a
culture of openness and accountability within government, providing
people with rights of access to the information held by public
authorities, presents both opportunities and risks for journalists.

From 1 January 2005, everyone will have the right to request any
information held by a public authority, subject only to the exemptions
set out in the Act. But there are signs this eagerly-awaited
step-change in government openness may not deliver all it appeared to
promise for journalists.

The Act contains significant exemptions. Some of these-including
those relating to bodies dealing with security matters (such as M15,
MI6 and GCHQ), confidential information, personal information, and
issues covered by Parliamentary privilege are absolute exemptions.
These do not require the public authority to apply any public interest
test before refusing to disclose. Neither do they impose any duty on
the authority even to confirm or deny the existence of the information
requested. Potentially, the most flexible of these is the exemption
relating to information prejudicial to the conduct of public affairs, a
phrase open to any number of interpretations.

The remaining, qualified exemptions cover information relating to a
range of areas including national security, defence and international
relations, trade secrets, ministerial policy, and the environment.

These exemptions permit public authorities to withhold information
on the grounds of public interest only where they can successfully
argue the public interest in withholding the information is greater
than the public interest in releasing it. It remains to be seen how
this will be applied in practice.

The Lord Chancellor, Lord Falconer, has made it clear freedom of
information does not mean a “free for all” and some governmental
information will remain exempt from the Act.

What is clear is there will have to be a balancing exercise on the
part of public authorities, and the significance of the Act will depend
on how willing they are to accept what Lord Falconer acknowledged would
be a complete culture change, to a presumptive openness only to be
deviated from where the circumstances genuinely demand.

Such openness could be a boon for journalism, but it is not without
risks. There is growing concern that the ability to access from a
public authority details of information requested by a journalist, or
the content of information or interviews given to that journalist may
present an opportunity for others to scoop stories before they are
published. However, it seems likely that interviews conducted in
private and specific requests for information by journalists may well
in many circumstances amount to confidential information subject to an
absolute exemption.

There is no doubt freedom of information can be a two-edged sword
and only time (and, no doubt, litigation) will tell whether it will be
truly embraced by government or the media.

Charles Brasted is a trainee solicitor at Lovells.

Charles Brasted

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